How Radical Is the Gay-Marriage Ruling?

Why the Massachusetts decision breaks new ground.

Illustration by Robert Neubecker

Earlier today, the Supreme Judicial Court of Massachusetts ruled in a 4-3 decision that same-sex couples have the right to marry under the state’s constitution; gay-rights advocates heralded the decision for going a “significant step beyond” earlier U.S. rulings. How does this outcome differ from gay-marriage decisions handed down in Vermont, Hawaii, Alaska, and Ontario?

Courts in Massachusetts, Ontario, and Vermont all agreed that denying gay couples marriage licenses had no rational basis, meaning that a ban on gay marriage wasn’t sufficiently connected to legitimate state goals. All three rulings also stated that withholding the benefits and obligations that come along with marriage denies gay couples equal protection under the relevant state constitutions and Canada’s Charter of Rights and Freedoms.

Where the courts differ is in their proposals for an appropriate remedy.

In June 2003, Ontario’s highest court ruled that gay couples in the province be allowed to receive marriage licenses immediately.

In 1999, the Vermont Supreme Court declared that the state was “constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage,” but left it to the state legislature to decide how to best remedy the situation. The Vermont legislature passed a bill setting up a parallel institution, the civil union, which conferred the same basic rights and benefits as marriage. The bill was signed in 2000 by Gov. Howard Dean.

The Massachusetts court’s decision lies somewhere in between. While the ruling does state that preventing gay couples from participating in the institution of marriage violates the state’s constitution, it does not require that gay couples be allowed to receive marriage licenses immediately. Instead, the court is staying judgment for 180 days to allow the state legislature to come up with a remedy.

The options before the state legislature include: approving same-sex marriage; getting rid of civil marriage altogether and replacing it with a type of civil union available to every couple on an equal basis; or doing nothing, in which case on the 181st day, the Massachusetts Superior Court would be required to issue an order implementing the higher court’s decision and allowing gay couples to obtain marriage licenses.

It seems that a civil union bill similar to Vermont’s wouldn’t fly, as the court ruled that it was discriminatory to prevent a same-sex couple from obtaining a marriage license. It is possible that the legislature could pass some kind of civil union bill, but it remains to be seen if that would pass muster with the court.

In 1998, voters in both Hawaii and Alaska approved constitutional amendments limiting the institution of marriage to opposite-sex couples, rendering moot rulings in both states requiring the state to offer legitimate reasons that same-sex couples not be allowed to marry. In Massachusetts, however, two consecutive legislatures must approve any potential constitutional amendment before it can be presented to voters for ratification, so the soonest it could be put on a ballot is November 2006.

Next question?

Explainer thanks Evan Wolfson of Freedom to Marry, Professor Jennifer Brown of Quinnipiac Law School and Professor William Eskridge, Jr. of Yale Law School.